Using “Pornography” For The Purpose of Personal Retribution and Political Oppression

By: Zac Papantoniou

For most people, the hurried rush of their everyday lives allows them to bustle about their routine, often taking for granted the protections afforded to them by our country’s Constitution. In the good ol’ U-S-of-A, most people wouldn’t think twice about criticizing the government; because here, in the land of freedom and opportunity, there really aren’t any repercussions to be faced when we express our point-of-view with regard to the way things are being run. This type of willful blindness allows us to forget that people in other parts of the world are being tried as criminals for simply trying to raise awareness on a matter that is crippling their country’s healthcare system.

In Zambia, a ban on pornography is apparently being used for the purpose of personal retribution and political oppression, where Chansa Kabwela (the news editor of the country’s largest independent newspaper, “The Post”) has been arrested and put on trial for “distributing obscene images.”

Kabwela, in an attempt to call for an end to a nurses’ strike that has crippled Zambia’s healthcare system, sent two photos to the country’s vice-president, its health minister, and various human rights groups. The two photos were of a woman, who had earlier been turned away from two medical clinics, giving birth without medical help. The “obscene images” contained in the photos were of the woman’s baby in the breech position, with its shoulders, legs and arms emerging from the woman’s vagina, but with the head still inside. By the time the woman was finally admitted to a hospital, it was too late for their surgeons to save the child, which died of suffocation.

Kabwela, who states she was given the photos by the woman’s relatives, sent the photos to the aforementioned government officials. Within a short matter of time, Zambia’s President Rupiah Banda demanded a police investigation, calling the pictures “pornographic.” Quickly thereafter, Kabwela was arrested for “distributing obscene material with intent to corrupt public morals,” a charge that carries a possible five-year prison term.

However, multiple organizations are claiming that the trial is likely not about the photographs at all. According to a “BBC News” story, the independent newspaper that Kabwela works for, “has relentlessly pursued the government with allegations of corruption, and the president has made no secret of his dislike of the paper.”

After reading this story, I stopped for a moment and took note of all the freedoms I have nonchalantly taken for granted on daily basis; freedoms, that I generally don’t think twice about, like expressing my opinion about the government without fear of criminal charges being brought against me, and being able to look at porn if I should so choose (though I can’t ever recall an instance where I looked at images of a woman in need of serious medical attention, due to a breeching infant, and considered those images “titillating,” “pornographic,” or “obscene” . . . usually I see those images on “Lifetime” when I’m trying to eat dinner, which I subsequently lose my appetite for, which leads me to quietly remind myself never to flip past that channel at 7 pm again . . . EVER).

H/T to Mark Kernes at Adult Video News

Should Anything Be Held Legally “Obscene”? Two Girls One Cup and the Third Miller Factor: Miller Delendum Est

Ain't Love Grand?

Since last year’s Valentine’s Day post about the film 2 Girls, 1 Cup was such a hit, we’re revisiting the “ain’t love grand” hit of the decade – Two Girls One Cup! (2G1C)

Last Valentine’s Day, I discussed obscenity risks in the specific context of 2G1C. This year, I’m going to show you how 2G1C proves that the Miller test must finally die, and the obscenity laws must be abolished.

The inspiration for this post comes from a fellow Satyriconista who sent me the following email:

As a matter of personal-professional opinion…. is there anything that you think should qualify, legally, as “obscene.”

My answer:

No, nothing.

I am not in bad company. My jurisprudential hero, Justice Brennan, called for an end to obscenity prosecutions in a scathing dissent he wrote for Paris Adult Theatre v. Slaton:

[T]he effort to suppress obscenity is predicated on unprovable, although strongly held, assumptions about human behavior, morality, sex, and religion. The existence of these assumptions cannot validate a statute that substantially undermines the guarantees of the First Amendment…Paris Adult Theatre v. Slaton, 413 U.S. 49, 109-110 (U.S. 1973) (Brennan, J. dissenting)

However, Brennan did not come to this mode of thought without some agony. In fact, it was Brennan’s opinion in Roth v. United States, 354 U.S. 476 (1957) that eventually evolved into the “Miller Test.” That test, currently used to determine whether or not material may be deemed “legally obscene” was what Brennan was attempting to repudiate in his dissent in Paris Adult Theatre.

According to Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:

1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

Click to see the full 2G1C review in all its glory

So lets take a look at my subject of choice for discussions about obscenity law — Two Girls, One Cup. (2G1C). If you haven’t seen the film, nor know anything about it, read this: A film review written by a college student – obviously making fun of left wing “victim studies” professors.

I do not recommend that anyone actually watch the film. I have watched the first 11 seconds of 2G1C — and after that I puke. Every time. The last time I tried to watch it, I showed it to my wife, who is an elementary school teacher. One would presume that I could out-last her. But, after five seconds, I gagged and had to turn away. She hung in for the whole thing, and she laughed most of the time. She’s sicker than I am. See why I love her?

Needless to say, it did not appeal to either of our prurient interests. But, does it lack serious literary and/or artistic, political, or scientific value? How are we to define “serious _____ value?” Does “Dancing with the Stars” have serious value? If you think so, you need to be sterilized. Does that mean that we could ban Dancing with the Stars? No freakin’ way. If freedom of expression means anything to us, then we must leave the marketplace of ideas to decide what expression should live or die. Sometimes, even often, we must pay an unfortunate price for holding on to that ethic. It means that both the evil Mein Kampf and the vacuous America’s Next Top Model get to exist, despite the damage they may do to our collective psyche.

Asking six (or 12) people who couldn’t get themselves out of jury duty to determine whether a work has “serious value” — and to not only make that decision for themselves, but for the rest of us, is horribly inconsistent with any intellectually honest theory of free expression. Nevertheless, until we can dispense completely with the Miller test, we still need to find a yardstick with which to measure “serious value,” or we need to accept the fact that that the third prong of the Miller Test actually encompasses everything - thus rendering the Miller Test functionally dead.

What alternatives do we have? Should we base “value” upon the popularity of the work? Well, if that were the case then movies about gay cowboys eating pudding would miss the mark, despite being critically acclaimed by “the experts.” On the other hand, based upon how many google searches have been conducted for “Two Girls One Cup,” I’d say that the much maligned film gives Martha Stewart a run for her money. No. Popularity wouldn’t satisfy anyone. And, as much as I am uncomfortable with six morons deciding what I can and can’t watch, I would rather have six random idiots decide than the collective idiocy that forms the American public.

My suggestion for determining “serious value,” (at least one test) would be to let the Marketplace of Ideas determine whether the third Miller factor has been met. The “value” of a work is difficult, if not impossible, to determine until we watch the cultural paint hit the societal canvas — then, and only then, should we examine what value the Marketplace assigns to the work.

[T]he ultimate good desired is better reached by free trade in ideas…that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. – Oliver Wendell Holmes

2G1C can actually make you physically ill — and it would disgust any sane juror. Nevertheless, it is impossible to say that the Marketplace of Ideas has determined that 2G1C as has no serious value. On the contrary, 2G1C launched a thousand internet memes, crawled up the pant leg of our collective psyche, and infected pop culture to such an extent that its serious value has been unquestionably proven. The Marketplace has spoken: 2G1C has serious artistic value.

Go to YouTube and search for “Two Girls, One Cup.” (or just click here). Trust me, you won’t find anything pornographic nor even likely unsafe to watch at work. Working with the raw material of this disturbing film, amateurs have put it on their screens and created an entire genre of work known as the Two Girls, One Cup Reaction Video. People, usually just-past-adolescence boys, love to put unsuspecting friends in front of webcams while making them watch 2G,1C. One guy had his grandmother watch it. (click here to see it). In fact, there appears to be an entire sub-genre of grandma reactions to 2G1C.

I have yet to see a 2G1C reaction video that is not utterly hilarious. “Serious value?” There is no serious value to oil as it bubbles out of the ground, but mill it about in a refinery for a little while and it becomes gasoline. You may watch 2G1C and react with disgust (like I did) or dismiss it as “stupid,” (like my wife did). However, I challenge you to not get lost in the reaction videos. They will make you laugh, make your day, and without 2G1C as their raw material, this entire class of expression would have never existed in the first place. The same can be said of Tubgirl, Goatse, Meatspin, Lemon Party, and every other disturbing porn image that later became an internet meme.

I really don’t need another 2G1C to be produced. However, after watching the reaction videos, I can honestly say that 2G1C has contributed mightily to the American artistic landscape. It formed the raw material for this hilarious Family Guy clip, this one with Kermit the Frog, or … well I’ve made my point.

Nevertheless, your Department of Justice (well rather, George W. Bush’s Department of Justice) decided that you couldn’t handle 2G1C, and that its distributor should be prosecuted as a criminal. He eventually accepted a plea bargain and was sentenced to three years probation and a $98,000 fine. I’m not shedding any tears for him, but I do resent the fact that some dickwad vetted by Monica Goodling decided for me that the work has no “serious value.” I am even more offended that said dickwad did so despite the clear voice of the Marketplace of Ideas screaming at us that 2G1C has serious value.

And frankly, if 2G1C has serious value, then everything does. Miller delendum est.

Happy Valentine’s Day.

Antique Store Owner Arrested for Production of Obscenity in Polk County

The Lakeland Ledger reports that an antique store owner who used his business premises to take nude photographs has been busted on obscenity charges in Polk County, Florida. However, the story seems a bit fishy.

Sheriff’s officials said a confidential source told detectives that within the last 30 days a teenager had been paid $40 to pose nude for photographs taken at the business.

“Detectives were told the confidential source asked the girl her age and she replied 14,’’ a sheriff’s report said. “Detectives learned that Denitto uses the same side room to manufacture films that include males and females engaged in sexual acts.’’

Undercover detectives visited the business Friday and saw a hand-written sign on the counter advertising “Models Wanted Paid Hourly.”

“When the undercover detectives asked what types of models were being sought, Denitto said he was looking for nude, female models and would pay $20 an hour,’’ the sheriff’s report said.

On Tuesday, detectives served a search warrant at the business.

“During the search several photo albums of nude women were discovered in various locations throughout the store. In a room adjacent to the southeast side of the business, detectives discovered a video camera, several photography books, a 35 MM camera, a Polaroid camera, and several nude photos of women. In addition six VHS tapes were seized,’’ the report said. (source)

Note how the story starts by setting up the story as a child porn investigation. However, John F. Denitto, the store owner was only charged with producing “obscenity.”

Polk County Judge Kevin Abdoney determined the tapes to be obscene, according to the Sheriff’s Office.

In his post on the story, Mark Kernes asks “What; they don’t have child porn laws in Florida?” This very astute observation reveals a possible flaw in the original reporting, or perhaps misinformation put out by the Polk County authorities (and it wouldn’t be the first time). If they searched the premises and found child porn, I imagine that Denitto would have been appropriately charged. Instead, they got a Polk County judge to determine that the materials are “obscene”?

There may be more to this story than appears on the surface. If it were anywhere else, I wouldn’t be so suspicious. However, Polk County is absolutely batshit crazy when it comes to bringing citizens up on obscenity charges. Innocent until proven guilty is particularly applicable when we’re talking about this kind of charge in this particular place. There is a reason why this blog has a “Polk County” category.

Hat Tip to Mark Kernes.

Your Private Emails Can Land You in Jail

In the latest case involving the absurd and unconstitutional obscenity statutes, the Fourth Circuit has upheld a conviction of a man for mere private possession of allegedly obscene material. See United States v. Whorley, __F.3d__ (4th Cir. 2008). While the facts may not fit any conduct in which you might engage, the logic could very well ensnare you one day.

Read on.

You should be outraged.

Introduction

The facts of the case are this: Mr. Whorley was using a computer at the Virginia Employment Commission (Virginia’s unemployment bureau). Apparently, Mr. Whorley was not looking for a job, but downloading anime porn cartoons from his Yahoo email account. An employee of the Commission caught him, and booted him from the premises. Mr. Whorley apparently forgot to log out of his account, so the employees clicked on a few of his email messages and printed them out for police. See Op. at 4.

Counts 1-20 charged Whorley with using a computer on March 30, 2004, to knowingly receive obscene cartoons in interstate and foreign commerce, in violation of 18 U.S.C. § 1462. The 20 cartoons forming the basis of those counts showed prepubescent children engaging in graphic sexual acts with adults. They depicted actual intercourse, masturbation, and oral sex, some of it coerced. Based on the same cartoons, the jury also charged Whorley in Counts 21-40 under 18 U.S.C. § 1466A(a)(1) with knowingly receiving, as a person previously convicted of illegally downloading child pornography, obscene visual depictions of minors engaging in sexually explicit conduct. In addition, the grand jury charged Whorley in Counts 41-55 with knowingly receiving, on March 11 and 12, 2004, 15 visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). These counts were based on lascivious photographs of actual, naked children. Finally, the grand jury charged Whorley in Counts 56-75 with sending or receiving in interstate commerce 20 obscene e-mails during the period between February 5, 2004, and April 2, 2004, in violation of 18 U.S.C. § 1462. The e-mails described sexually explicit conduct involving children, including incest and molestation by doctors. Op. at 4-5

Lets just agree that Mr. Whorley is not the most sympathetic character. He was on probation for child porn charges in 1999. Additionally, he appears to have frequented forums for questionable material, and is reported to have been searching for terms such as “child sex play.” I’m not playing a violin for Mr. Whorley. Nevertheless, when we allow cases like this one to be decided based upon the status of the defendant, all of our constitutional rights are burned under the flame of hatred for sexual deviants.

You can Possess any Materials You Want – But that Doesn’t Mean that You Can Receive Them

Whorley challenged the constitutionality of 18 U.S.C. § 1462 because “it makes no exception for the private receipt, possession, or viewing of obscene material.” He argued that Stanley v. Georgia, 394 U.S. 557 (1969) renders any laws that criminalize the mere possession of obscenity unconstitutional.

“If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” Stanley v. Georgia at 568.

Section 1462 provides:

Whoever brings into the United States . . . or knowingly uses any express company or other common carrier or interactive computer service . . . for carriage in interstate or foreign commerce (a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or
* * *
Whoever knowingly takes or receives, from such express company or other common carrier or interactive computer service . . . any matter or thing the carriage or importation of which is herein made unlawful Shall be fined under this title or imprisoned not more than five years . . .

And the Fourth Circuit held that Stanley v. Georgia might have said that a person may possess obscene material in the privacy of his or her own home, but that right did not mean that the person has a right to receive such materials. The Fourth Circuit did not hack this constitutional Catch-22 out of whole cloth. Rather, the Fourth relied upon a string of cases supporting this illogical result.

See United States v. Reidel, 402 U.S. 351, 354-55 (1971) (explicitly rejecting the notion that Stanley’s recognition of the defendant’s right to possess obscenity meant that “someone must have the right to deliver it to him” through the channels of commerce (internal quotation marks omitted)); see also Smith v. United States, 431 U.S. 291, 307 (1977) (“Stanley did not create a right to receive, transport, or distribute obscene material, even though it had established the right to possess the material in the privacy of the home”); United States v. Orito, 413 U.S. 139, 141 (1973) (holding that Stanley’s tolerance of obscenity within the privacy of the home created no “correlative right to receive it, transport it, or distribute it”); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376 (1971) (“That the private user under Stanley may not be prosecuted for possession of obscenity in his home does not mean that he is entitled to import it from abroad free from the power of Congress to exclude noxious articles from commerce”). (Op. at 7)

So kids, get out your pencils and note pads. Under Stanley v. Georgia, you can possess obscene materials all you like, in the privacy of your own home. While the First Amendment recognizes this fact and provides that the government can never tell you what you can read or watch in your own home, you can’t actually get those books or pictures from other people, carry them in your pocket, or send them to anyone else.

Cartoons and Text Can be Legally “Obscene”

Under Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:

1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

Under this test, it seems like a constitutional impossibility that the written word or drawn cartoons could be legally “obscene.” If something is written or drawn, it would seem to be imbued with “literary or artistic value.” Even if it had none, rendering private correspondence between two people “obscene” seems to fly in the face of everything that the First Amendment stands for. Nevertheless, the majority in U.S. v. Whorley not only disagreed with Mr. Whorley, but seemed to be downright flippant about it:

In essence, Whorley argues that text, standing alone, may not constitutionally be prohibited as obscene. He never explains why, however, nor does he cite any authority for his argument. Indeed, he overlooks the traditional formulations of obscenity, which have never depended on the form or medium of expression. (Op. at 12)

The Court’s attitude can be somewhat excused if Mr. Whorley’s attorney truly did fail to cite a single bit of authority in his support — especially in light of Kaplan v. California, 413 U.S. 115 (1973) which says that the medium is not relevant to the obscenity analysis.

The Virtual Child Porn Case Doesn’t Mean What You Think

Right after I was in law school, the big First Amendment issue of the day was Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). That case struck down a law prohibiting “virtual child porn,” as violative of the First Amendment. Ashcroft v. FSC held that if an image was not of an actual child, then it was not child porn. However, the language of that decision said that the government could not criminalize images that were neither obscene nor involving actual children. Congress reacted to this case by passing the PROTECT Act of 2003, Pub. L. No. 108-21, § 504, 117 Stat. 650, 680-82 (2003) — which makes it illegal to possess, sell, distribute, “sexually explicit drawings, cartoons, sculptures, or paintings that A) depict minors engaging in sexually explicit conduct, *and* are obscene. “It is not a required element of any offense under this section that the minor depicted actually exist. ” 18 U.S.C. § 1466A(a), (c).

Procedural Issues

Although I wish to keep this post limited to the free speech issues in this case, some procedural matters are worth mentioning. Whorley objected to the search of his email as a violation of his Fourth Amendment rights — but his objection came too late to help him. More importantly, he challenged the objectivity of the trial judge since he was a member chairman of the Meese Commission:

Whorley contends that the district judge, who in 1986 chaired the Federal Attorney General’s Commission on Pornography while serving as a Commonwealth’s Attorney for Virginia, abused his discretion in denying Whorley’s motion that the judge recuse himself. The district judge denied the motion as untimely. (Op. at 19)

This certainly seems to be an awfully flippant dismissal of the accused’s rights. However, the opinion makes it clear that during arraignment, the judge advised Mr. Whorley’s attorney that he chaired the Meese Commission and directly asked him whether he would seek recusal.

Whorley’s counsel subsequently notified the court that Whorley did not intend to request recusal. But then, on the last business day before trial, some seven months after Whorley’s arraignment, Whorley filed the motion to recuse.

D’oh!

Conclusion

Every normal man must be tempted at times to spit on his hands, hoist the black flag, and begin to slit throats. -H.L. Mencken

This is one of those cases that gives rise to such a temptation.

Like I said above, Mr. Whorley isn’t the most sympathetic defendant, and from the looks of it, his attorney was not exactly on his “A game” in this case. Unfortunately, this is how our freedoms are lost, little piece by little piece. An unsympathetic defendant here, an inexperienced lawyer there, and then all of a sudden we all find ourselves surrounded by walls that were built by Meese Commission chairmen turned judge along with fringe defendants and bumbling attorneys with no experience in these kinds of cases.

And then what?

Then you send a sexually-charged email to your girlfriend or boyfriend. Or your college buddy sends you Tubgirl or Meatspin as a gag. Someone who doesn’t like you finds it. You happen to be on the local prosecutor’s shit list for some reason – or maybe he just came from a sermon by his Southern Baptist preacher that “obscenitah must be stamped out.” Or maybe the cops come to your house to check out a noise complaint and just see it up on the screen. You give them a little attitude. You’re hauled off and charged with violating the obscenity laws.

You know what? The logic in this case fits your scenario perfectly, and you are now a criminal.

Connecticut Swingers Busted

A swingers club in Connecticut was the subject of a police investigation and raid. Nothing too unusual there. It happens all the time. A bunch of consenting adults rented out a bar, only allowed people to attend if they signed up and joined their group, and the fucking jackbooted nazis police couldn’t stand the thought of consenting adults fucking at a private party.

What I find remarkable about the case is that the police have charged a photographer at the event with obscenity. (source)

David and Tania Shadowfax were the photographers at the event.

The couple led a game of “rings” at the November event attended by undercover local police and liquor control agents. The objective of the game was for a woman to grab the most men she could and get five sexy pictures taken with them, according to an arrest affidavit. According to his arrest affidavit, David Shadowfax has thousands of photos stored in his computer showing women, including his wife, engaging in sexual activity at one or more “swingers” parties. (source)

The Shadowfaxes were charged with violating Connecticut’s obscenity statute. Let us presume, for the sake of argument, that the Shadowfaxes photographs were, indeed, legally obscene. I question whether the Shadowfaxes could be properly charged with violating the obscenity laws for possession of photographs that they took themselves — obscene or not. See Stanley v. Georgia, 394 U.S. 557 (1969). Under that case, the Supreme Court held that the First Amendment prohibits a state from making mere possession of obscene photographs a crime. “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”

33 Months for Shipping Obscene Materials

An Indiana man was sentenced to 33 months in prison for shipping movies of consenting adults having sex with other consenting adults to other consenting adults who paid for the movies to be shipped to them.

Land of the free, my ass.

Obama’s AG Pick Has a Censorship Goon Past

Can the Bill of Rights trust this man to honor his oath of office? His past suggests that the answer is a resounding 'no'

Obama’s pick for Attorney General seems to be Eric Holder, a former Deputy Attorney General during the Clinton Administration. AVN’s Mark Kernes reports that Holder does not have a good track record on First Amendment issues.

In 1998, Holder wrote a memo to all 94 U.S. Attorneys:

“As you are aware within the past few years there has been increasing concern about the distribution of obscenity and child pornography both by traditional purveyors of “adult material” and in particular by those who distribute such material over the Internet. As a result of this unprecedented growth, I wish to remind you of the Department’s policies and priorities in the prosecution of federal obscenity cases… Thus, priority should be given to cases involving large-scale distributors who realize substantial income from multistate operations and cases in which there is evidence of organized crime involvement. However, prosecution of cases involving relatively small distributors can have a deterrent effect and would dispel any notion that obscenity distributors are insulated from prosecution if their operations fail to exceed a predetermined size or if they fragment their business into small-scale operations… In particular, priority also should be given to large-scale distributors of obscenity over the Internet. Because of the nature of the Internet and the availability of agents trained in conducting criminal investigations in cyberspace, investigation and prosecution of Internet obscenity is particularly suitable for federal resources.” (primary source emphasis added)

Kernes reports that a letter from Holder to Paul McGeady, the founder of Morality in Media, is even more troubling. This letter “references a meeting apparently attended by Holder, McGeady and representatives of various religio-conservative pro-censorship groups:” (source)

“I appreciated having the opportunity to meet with you recently to discuss the prosecution of obscenity cases,” Holder wrote. “Your commitment to this important issue is commendable, and I fully share your concerns about the distribution of obscenity and child pornography, whether it is over the Internet or by more traditional purveyors of such material. I encourage you, and the other organizations with whom I met, to continue working closely with the Child Exploitation and Obscenity Section of the Department of Justice as we work aggressively to address this troubling problem. Based on the many insightful comments and observations made by representatives of the various groups who attended our recent meeting, I determined that it was appropriate for me to send a memorandum to all United States Attorneys reminding them of the Department’s policies.” (source - primary source unavailable)

Okay, I’m Convinced

Virginia Obscenity Case Goes to Trial – Government Witness is Well Known Crackpot

Another day, another peckerwood community pisses on the First Amendment by trying to put consenting adults in jail for selling videos of consenting adults to other consenting adults.

During this trial, the state intends to call Dr. Mary Anne Layden as an expert witness. She previously testified before the House Commerce Subcommittee on Technology, Trade and Consumer Protection on the proposed legislation that would become COPA. That law has been struck down repeatedly.

Adult entertainment lawyer, Jeffrey Douglas was at that hearing and reports that Layden’s testimony was a bit less than credible. “She testified that a woman became a nun because she was raped by her brother who saw their father’s Playboy magazines,” he wrote. “I kid you not.”

In November of 2004, she testified at Sam Brownback’s (R-KS) infamous “porn is an erotoxin” hearing. See Internet Porn: Worse Than Crack? Her absurd testimony is here. At those hearings, Layden referred to pornography as tantamount to an addictive drug and called it “the most concerning thing to psychological health that I know of existing today.” (My law firm’s response is available here).

In a personal conversation I had with Senator Russ Feingold, he referred to the “erotoxin hearings” as the lowest point to which he had ever seen a senator sink.

And this is the crackpot that the State of Virginia dug up, apparently from its international directory of ass-hats.

Defense attorney, Paul Cambria, will be fighting the man in this case. Paul sums up the theme of his defense.

“The bottom line decision is going to be, does an adult in the community have the right to choose this form of entertainment if that is the thing they would like to select? That really is what it comes down to.” (source)

Rock on, brother.

Using Google Trends to Prove a Point about Porn

In an obscenity trial, in order for a prosecutor to lock up an American citizen for making “dirty movies” or “dirty writings” or “dirty pictures,” he (or she) must convince the jury that the material violates “community standards.” Unfortunately, that tends to be easier than you may think, for jurors will often substitute their personal approval or disapproval of content for their judgment about what the community might think. And, what the community thinks in private is very different from what the community will admit in public.

According to Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:

1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

The Miller test was written in 1973 — long before the advent of the Internet. Accordingly, it doesn’t seem to really fit in with the Internet. When you apply “community standards” to your local bookstore — well, it seems relatively simple to apply the Miller test. However, when looking at a global medium, the test starts to lose some of its logical wheels. For a good discussion of this issue, see Lawrence G. Walters and Clyde F. DeWitt, Obscenity in the Digital Age, the Re-Evaluation of Community Standards.

A while back, I started playing with Google Trends while fighting an examining attorney’s determination that one of our clients’ trademarks was “immoral and scandalous,” and that a “substantial composite of the internet-using public” would think so. That research wound up in this brief to the examiner, and this brief to the TTAB.

Essentially, Google Trends lets you find out how often users are searching for certain terms. I compared our client’s trademark to common search terms. Read the briefs for details.

This tool proved itself useful once again in a recent obscenity trial, as reported on in the New York Times.

Judges and jurors who must decide whether sexually explicit material is obscene are asked to use a local yardstick: does the material violate community standards?

That is often a tricky question because there is no simple, concrete way to gauge a community’s tastes and values.

The Internet may be changing that. In a novel approach, the defense in an obscenity trial in Florida plans to use publicly accessible Google search data to try to persuade jurors that their neighbors have broader interests than they might have thought.

In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like “orgy” than for “apple pie” or “watermelon.” The publicly accessible data is vague in that it does not specify how many people are searching for the terms, just their relative popularity over time. But the defense lawyer, Lawrence Walters, is arguing that the evidence is sufficient to demonstrate that interest in the sexual subjects exceeds that of more mainstream topics — and that by extension, the sexual material distributed by his client is not outside the norm.(source)

By using Google Trends, Attorney Walters hopes to show the jurors that their local area might not be as conservative as they think.

“Time and time again you’ll have jurors sitting on a jury panel who will condemn material that they routinely consume in private,” said Mr. Walters, the defense lawyer. Using the Internet data, “we can show how people really think and feel and act in their own homes, which, parenthetically, is where this material was intended to be viewed,” he added.

See What’s Obscene? Google Could Have an Answer for the whole story. Google… the duct tape of the internet.

Kozinski “scandal” is a non-story

I wanted to resist writing about the Kozinski porn “scandal”. I simply saw no reason to add fuel to the fire. Feminazis, big surprise, threw a hissy fit, saying: “He is not ethically competent to hear obscenity cases.” (source)

Of course, a “real” professor, Lawrence Lessig, explains the facts simply enough that even a critical victim studies theorist can understand (but rest assured, they’ll still scream that the world is flat).

Here are the facts as I’ve been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski’s son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it. (source)

In other words, the boneheads in the media and at Feminist Law Profs are purposely trying to mislead the public into believing that Kozinski was “publishing” a porn website. (much to the delight of the disgruntled litigant who started this whole mess) This wasn’t a “website,” it was a “directory.” Nevertheless, it really doesn’t matter. Kozinski had as much right to have those images on in this directory (and frankly, on a public website, if he so chose) as he had a right to have a six pack of beer in his refrigerator. They are perfectly legal. Attorney Gill Sperlien asked: “Should a judge who owns a car and operates it lawfully be disqualified from presiding over a trial where a car was used unlawfully (e.g. DUI, reckless driving, vehicular homicide)?“

Indeed, Judge Kozinski’s familiarity with internet erotic content makes him more, not less, competent as a judge in an obscenity case. He would be more familiar with the community standards, what is available as comparable material, and likely in a better position to bring a dose of reality to the trial. First Amendment attorney Gary Edinger said, “We let crazy zealot Southern Baptist born again judges preside over obscenity trials wherever they spring up. The press never suggests that those Jesus freaks are incapable of being neutral and impartial dispensers of justice.“

Professor Dave Fagundes made a great observation:

A very puritanical person who had a strong bias against anything even remotely sexually explicit would be very likely to have no pornography on their computer, but this certainly wouldn’t mean such a person was objective. If anything, a judge who has a strong stomach for all kinds of material might be better suited to evaluate whether the highly context-sensitive First Amendment standards for obscenity apply to a particular work. Very rough analogy, but wouldn’t you rather have a bibliophile evaluate the literary merit of a given novel than someone who had never read a book?

Fagundes also questioned whether the Kozinski material was accurately called “pornography.”

It’s more just crude, kind of bizarre, sexually themed humor-the kind of stuff a college sophomore might find hilarious and send to his frat buddies. So I think there’s a foundational difference between Koz’s motivations (which I think were merely to share bawdy laughs with others, however lame the jokes may have been) and the aims of the defendant in the trial (which were presumably to generate sexually explicit material to arouse whoever viewed it).

I’ve gone through most of Kozinski’s images, trying to figure out what all the fuss was about…. They are nothing more than a collection of stupid images that most of us get sent to us at one time or another by that annoying friend who cant keep his finger off the “forward” button.

For example, the press describes one of the images as “of contortionist sex.” Technically, it is, but it is accompanied by a spoof of the “for everything else there is master card” ad campaign. The “bestiality” content? That was the famous “donkey rapes man” video (shown at the bottom of this post).

And so on… In fact, if you look in my “deleted items folder,” you’ll find most of those images in there too. Most were forwarded by friends who seem to think that I would find them funny. Some are funny, most are just dumb and out-dated internet memes. I don’t bother to save them, because I know that someone else will forward it to me in a week.

The feminazis seem fixated on one image of two nude women painted as cows – whining that it is “degrading” because the women are positioned as if to say “come milk me” or “come fuck me”. This is somehow evidence that Kozinski is a misogynist.

I’m not sure that it is proper to lay our personal moralities over any of the depictions. I may be lacking in imagination, but neither “come milk me” nor “come fuck me” came to mind when I saw it. Perhaps the author of the work was trying to make a comment about how women are portrayed in the media. I don’t know what was in the author’s mind any more than I know what is in the collector’s mind. However, the thought police over at feminazi law profs, they know exactly what is in Kozinski’s mind… and they want it re-educated right now.

Here’s Kozinski’s “bestiality” video.

Should we put people in jail for this?

This from the AP via the Washington Post:

It’s the most extreme material that’s ever been put on trial. I don’t know of anything more disgusting,” said Roger Jon Diamond – Isaacs’ own defense attorney.

The case is the most visible effort of a new federal task force designed to crack down on smut in America. Isaacs, however, says his work is an extreme but constitutionally protected form of art.

“There’s no question the stuff is disgusting,” said Diamond, who has spent much of his career representing pornographers. “The question is should we throw people in jail for it?”

Personally, I think that the only people who belong in jail in this equation are those traitors to the Constitution who want to put Isaacs in prison.

Max Hardcore Convicted

Yesterday, Paul Little (a.k.a. Max Hardcore) was convicted on 10 counts of distributing obscene materials. (source) The short version: Consenting adults decided to make a movie. Consenting adults starred in the movie. Consenting adults bought the movie. Nevertheless, your government decided that someone should go to prison for it.

And yesterday, twelve of the dumbest motherfuckers in Florida bent the Constitution over and fucked it in the ass.

I don’t like Max Hardcore’s movies. You probably wouldn’t either. I have exercised my right to watch something else, but I certainly don’t mind if my neighbors want to watch his movies. That is what freedom is.

Today, you are less free because of a sleazeball administration and twelve of Florida’s most moronic citizens.

For more posts on obscenity law, click here.

A Witness to an Obscenity Trial Speaks

Honoring Our Nation’s Heroes—By Looking At Crap
By Anonymous

I’m spending Memorial Day wrestling with the First Amendment.

The Constitution lays it out perfectly clearly:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.”

So what part of “Shall make no law” is confusing?

I’m spending Memorial Day looking at crap. Disgusting, stupid, un-sexy crap. Crap that, because it features penises, vaginas, and buttholes, is under indictment. That is, the people who make it and sell it are under indictment. If they lose, they will pay enormous fines, go to jail, and have their cars, houses, and 401(k)s taken by the government.

I’m spending Memorial Day discharging my duty as a witness in an obscenity trial. In a few weeks, I’ll be asked — as a witness — my opinion on various aspects of this crap, and the people who look at it.

What I’d like to say is “excuse me, this is America. All the people in these films have proven they’re over 18. All the people buying them are over 18. So for what reason could the U.S. government possibly be interested? And how could the government’s interest possibly be legal?”

Instead, I have to participate in the Miller Test game. I’ll be asked to discuss the potential literary, artistic, political or scientific value of the crap, and to judge the interest the crap’s consumers have in it—shameful? Morbid? Playful? Ironic?

America’s obsessive pursuit of censorship disgraces our great nation. The belief that some adult material is “over the line” or “blasphemous” or “sick”—and therefore outside the bounds of our glorious social experiment in free speech—is a stain on our great contribution to human history, the American constitution.

So this Memorial Day, I won’t march in a parade, wave a flag, or talk about wars won or not yet won. I’ll be honoring our nation’s past, and defending our nation’s future– by looking at crap, and looking for loopholes in disgusting laws so that the light of our transcendent Founders can shine through.

The Author of this piece shall remain anonymous

Evil Angel Obscenity Indictment Update

Those brave souls at the Department of Justice are at it again, protecting freedom and democracy pissing on the Constitution, in violation of their oath of office.

XBiz reports that John Stagliano and Evil Angel Productions are the latest targets of the Bush administration’s faith-based censorship task force and its lead toadie, Brent Ward.

Stagliano and his related companies were charged with “three counts of using a facility of interstate commerce to sell and distribute DVDs containing obscene films together with a movie trailer in violation; two counts of using a common carrier for the conveyance or delivery of DVDs containing obscene films in interstate commerce; one count of engaging in the business of selling or transferring an obscene film and a movie trailer; one count of using an interactive computer service to display an obscene movie trailer in a manner available to a person under 18 years of age; and one count seeking forfeiture of certain assets of the defendants.” (source)

The indictment reported on here apparently is for films involving squirting, anal squirting, and/or enemas. A copy is available here.

1. Belladonna- Fetish Fanatic 5
2. Milk Nymphos
3. Storm Squirters 2

I will agree that films involving squirting milk up a girl’s ass, and then watching it spray out again are on the far side of strange-world. Nevertheless, is this something that you want your government pursuing? Do you really think that your government should be spending its resources trying to put Stagliano in prison?

Who is the greater threat to us all? Stagliano or Brent Ward?

Ward is a repressed Utah fascist who came to power during the Bush administration’s push to make the entire government a faith-based initiative. After years of languishing in frustration in Utah, Ward was given a position of power at the Department of Justice — heading up the DOJ’s obscenity task force. When prosecutors laughed at him for trying to divert government resources to putting people in jail for selling “dirty movies,” he got pissed — and did his best to remove prosecutors who didn’t follow his faith-based anti-First Amendment crusade. (source). Remember the U.S. Attorneys scandal from a few months ago? At least two of the U.S. Attorneys lost their jobs because they thought that pursuing crime was more important than trying to criminalize First Amendment protected expression.

Adult obscenity prosecutions are notoriously difficult to win, since prosecutors must show that materials involving and used by consenting adults have violated local “community standards.” In the post-9/11 era, law enforcement experts have questioned whether a focus on federal obscenity cases makes sense, given the massive resources diverted to counterterrorism and the demands of other criminal priorities like gun violence, identity theft and the proliferation via the Internet of sex crimes against children.

“With everything else going on, should they really have FBI agents and prosecutors devoted to sitting around watching dirty movies?” said a senior law enforcement official who attended a national conference on adult obscenity orchestrated by the Gonzales Justice Department in October 2006. “We’re not the policymakers,” he said. “But I guarantee you won’t find any office in any major metropolitan area that would seriously consider this a priority.” (source)

Well, it looks like someone threw Ward a bone. That bone is Mr. Stagliano — but Mr. Stagliano stands in as a proxy for all of our freedom, whether we like milk enema movies or not.

I do not believe that obscenity can truly and honestly be Constitutionally prohibited. See Two Girls, One Cup – Practical Obscenity Law. Nevertheless, for as long as we have zealots serving as prosecutors, and they seek to pander to the worst people in society, there will be obscenity prosecutions.

I believe that even the worst content (as long as that content is of consenting adults) should be constitutionally protected. Nevertheless, the reality is that the social conservatives have funded this modern-day thought police, this obscenity task force that exists for one purpose — to watch dirty movies and put people in prison for making and selling them. Somewhere, right now, there is a Ned Flanders type with deep feelings of repressed homosexuality watching a film with some church-chat looking woman who spent three years in law school with her face buried in Andrea Dworkin law review articles, and the two of them are deciding that the person who made a certain movie needs to be in prison.

In the United States of America… Your tax dollars are spent on efforts to put adults in prison who filmed other consenting adults and sold the movie to other consenting adults.

So much for the land of the free.

The only “crime” that Stagliano committed was dissemination of speech that challenges the morality that Brent Ward has decided we should all live by.

If you don’t like milk-enema films, then exercise your right to not watch it. But, shouldn’t we all, as free Americans, have the right to make that decision for ourselves? Nobody forced the girls to be in the video. Nobody forced the guy to make the video. Nobody forced anyone to fork over their hard earned cash to buy the video.

That’s what freedom is. You make your own choices — for ill or for good.

The government has no right to take a hand in that decision. And the only person who belongs in jail in this equation is Brent Ward, a crusading lowlife who thinks that he should have the right to reach into my life, and your life, and punish us for exercising our fundamental rights to express ourselves any way that we damn well please.

Update Here is a link to Stagliano’s legal defense fund page.